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Grimes-Jenkins v. Consolidated Edison Co. of New York, Inc.

United States District Court, S.D. New York

May 22, 2017





         The plaintiff, Sherry Grimes-Jenkins, brings this action alleging employment discrimination, retaliation, and harassment in violation of a panoply of anti-discrimination statutes. The defendant has moved to dismiss the Amended Complaint in part and the plaintiff has cross-moved for leave to file a second amended complaint. For the reasons set forth below, I recommend that both motions be granted in part and denied in part.


         Ms. Grimes-Jenkins, a black West Indian woman, has been an employee of the Consolidated Edison Company of New York ("ConEd") since 1990. (Proposed Second Amended Verified Complaint ("Proposed SAC"), attached as Exh. B to Declaration of Hugh G. Jasne dated Dec. 23, 2016 ("Jasne Decl."), ¶¶ 10, 14).[1] She alleges that throughout her tenure at ConEd, she has been sexually harassed by ConEd employees (Proposed SAC, ¶¶ 16, 20, 26, 29, 34, 47, 57); her colleagues have made racist and sexist comments in the workplace (Proposed SAC, ¶¶ 17, 19, 22, 25, 38-39, 44, 60); she has been denied training opportunities, access to facilities, and other favorable working conditions given to male employees (Proposed SAC, ¶¶ 17, 24-26, 31-32, 40, 50); she has been demoted, denied promotions, and denied wage increases because of her race, sex, and pregnancy (Proposed SAC, ¶¶ 38, 45, 52); she has been “written up, ” denied training, and threatened with termination because of injuries suffered on the job and medical conditions associated with her pregnancy (Proposed SAC, ¶¶ 27, 35-36, 43); and she has been retaliated against for reporting these alleged acts of discrimination and harassment. (Proposed SAC, ¶¶ 20-21, 33, 42-44, 59). She also alleges that she was sexually assaulted by a group of ConEd employees in 1991. (Proposed SAC, ¶ 15).

         On April 3, 2014, the plaintiff filed a charge with the United States Equal Employment Opportunity Commission (“EEOC”) alleging sex and national origin discrimination and retaliation for reporting such discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). (Notice of Charge of Discrimination (“EEOC Charge”), attached as Exh. A to Declaration of Lorie E. Almon dated Nov. 18, 2016; Proposed SAC, ¶ 103). On April 12, 2016, the EEOC issued a Right to Sue Letter. (Proposed SAC, ¶ 106). The plaintiff commenced this action on June 23, 2016.

         On August 30, 2016, the parties entered into a stipulation giving the plaintiff leave to file an amended complaint (Stipulation to File an Amended Complaint dated Aug. 30, 2016 (“Stipulation”)), which she did on September 13, 2016. The Amended Complaint alleges (1) discrimination based on race, national origin, sex, and religion under Title VII; the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (the “NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (the “NYCHRL”) (first, second, ninth, and twelfth causes of action);[2](2) quid pro quo harassment (sixth cause of action); (3) hostile work environment (seventh cause of action); (4) retaliation (eighth cause of action); (5) punitive damages under Title VII (tenth cause of action)[3] (6) intentional infliction of emotional distress (eleventh cause of action);[4] (7) discrimination under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (the “PDA”) (twelfth cause of action); (8) discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”) (twelfth cause of action); (9) discrimination under the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq. (“GINA”) (twelfth cause of action); (10) discrimination under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (the “FMLA”) (twelfth cause of action); and (11) violation of the Employee Retirement Income Security Act, 29 U.S.C. § 1132 et seq. (“ERISA”) (twelfth cause of action).

         On November 18, 2016, the defendant moved to dismiss the Amended Complaint in part, seeking dismissal of all of the plaintiff's claims except (1) the Title VII retaliation claim and hostile work environment claims based on race and sex to the extent that they are based on conduct that occurred on or after June 7, 2013; and (2) the NYSHRL and NYCHRL retaliation claims and hostile work environment claims based on race and sex to the extent that they are based on conduct that occurred on or after June 23, 2013. (Def. Memo. at 3 n.1).

         On December 23, 2016, together with her opposition to the motion to dismiss, the plaintiff cross-moved for leave to file a second amended complaint. The Proposed Second Amended Complaint replaces the plaintiff's religious discrimination claim with a discrimination claim based on her ethnicity. (Proposed SAC, ¶¶ 1, 14, 62, 99). It otherwise alleges the same causes of action as the Amended Complaint, though it reorganizes the claims under different headings, recharacterizes the discrimination claims under the FMLA, the ADA, and GINA as claims for “unlawful employment practices” (Compare FAC, ¶¶ 120-24, with Proposed SAC, ¶¶ 183-230), and clarifies that the quid pro quo harassment, hostile work environment, and retaliation claims are each brought pursuant to Title VII, the NYSHRL, the NYCHRL, the FMLA, the PDA, the ADA, and GINA. (Proposed SAC, ¶¶ 128, 139, 151-52, 158, 167).

         Legal Standard

         A. Motion to Dismiss

         To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court's charge in ruling on a 12(b)(6) motion “is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” GVA Market Neutral Master Ltd. v. Veras Capital Partners Offshore Fund, Ltd., 580 F.Supp.2d 321, 327 (S.D.N.Y. 2008) (quoting Eternity Global Master Fund Ltd. v. Morgan Guaranty Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004)). The court must construe the complaint in the light most favorable to the plaintiff, “taking its factual allegations to be true and drawing all reasonable inferences in the plaintiff's favor.” Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

         B. Leave to Amend

         Rule 15 of the Federal Rules of Civil Procedure provides that courts should “freely give” leave to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2); accord Foman v. Davis, 371 U.S. 178, 182 (1962); Aetna Casualty & Surety Co. v. Aniero Concrete Co., 404 F.3d 566, 603 (2d Cir. 2005). “This permissive standard is consistent with [the Second Circuit's] ‘strong preference for resolving disputes on the merits.'” Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (quoting New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)). The court has broad discretion over motions to amend, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and may deny such a motion for the following reasons: (1) undue prejudice to the non-moving party, (2) futility, (3) bad faith or dilatory motive, (4) repeated failure to cure deficiencies by previous amendments, or (5) undue delay, United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016).

         Here, the defendant opposes leave to amend on the grounds of futility and undue prejudice. Leave to amend should be denied as futile when the amended pleading would not survive a motion to dismiss under Rule 12(b)(6). IBEW Local Union No. 58 Pension Trust Fund and Annuity Fund v. Royal Bank of Scotland Group, PLC, 783 F.3d 383, 389 (2d Cir. 2015). Thus, the standard governing leave to amend is whether the amended pleading states a claim on which relief can be granted when all facts pled are accepted as true and construed in the light most favorable to the plaintiff. See Panther Partners Inc. v. Ikanos Communications, Inc., 681 F.3d 114, 119 (2d Cir. 2012) (citing Ashcroft, 556 U.S. at 678-80). The defendant bears the burden of demonstrating that the proposed amendment is futile. See Allison v. Clos-ette Too, LLC, No. 14 Civ. 1618, 2015 WL 136102, at *2 (S.D.N.Y. Jan. 9, 2015).

         In deciding whether the party opposing amendment would suffer undue prejudice, courts evaluate whether the amendment would “(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction.” Hutter v. Countrywide Bank, N.A., 41 F.Supp.3d 363, 371 (S.D.N.Y. 2014) (quoting Monahan v. New York City Department of Corrections, 214 F.3d 275, 284 (2d Cir. 2000)). Courts also consider the particular procedural posture of the case. See, e.g., Ruotolo v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008) (“Undue prejudice arises when an ‘amendment [comes] on the eve of trial and would result in new problems of proof.'” (alteration in original) (quoting State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981))); Grochowski v. Phoenix Construction, 318 F.3d 80, 86 (2d Cir. 2003) (upholding denial of leave to amend sought after discovery had closed and while summary judgment motion was pending). The non-moving party bears the burden of demonstrating that undue prejudice would result if the proposed amendment were granted. Oneida Indian Nation of New York State v. County of Oneida, 199 F.R.D. 61, 77 (S.D.N.Y. 2000).


         The plaintiff concedes that the Proposed Second Amended Complaint, rather than adding new causes of action or new factual allegations, “merely clarifies the allegations contained in the Amended Complaint” in order to plead the claims “more artfully.” (Plaintiff's Memorandum of Law Submitted in Opposition to Defendant's Motion for Partial Dismissal of Plaintiff's Amended Complaint and in Support of Plaintiff's Cross-Motion to Further Amend the Complaint (“Pl. Memo.”) at 32). With the exception of the plaintiff's replacement of her religious discrimination claim with an ethnicity discrimination claim, this characterization of the Proposed Second Amended Complaint is accurate. Accordingly, with that exception, the defendant's motion to dismiss and the plaintiff's cross-motion for leave to amend present the same question -- whether the allegations in the pleadings, which are substantively identical, state claims on which relief can be granted.[5] Cf. 3801 Beach Channel, Inc. v. Schvartzman, No. 05 CV 207, 2007 WL 2891119, at *11 (E.D.N.Y. Sept. 28, 2007) (denying leave to amend where there were “serious substantive legal defects” in the original complaint and “plaintiffs' counsel [made] clear [that] an amendment would do no more than reorganize and clarify the factual allegations and legal theories already set forth in the existing Complaint”).

         The plaintiff alleges numerous incidents of discrimination, retaliation, and harassment dating back to 1990. For reasons that will be discussed below, the statutes of limitations on all of the plaintiff's claims -- with the exception of the ERISA claim -- bar consideration of conduct that occurred before June 7, 2013, at the earliest. Accordingly, before considering whether the allegations in the plaintiff's pleadings state claims on which relief can be granted, I will review the allegations concerning events that occurred since June 7, 2013.

         The plaintiff alleges that certain conduct occurred “in 2013” without providing a specific month or day.[6] For example, in 2013, Devri Gibbs, another ConEd employee, asked a supervisor, Tye Barnes, in the plaintiff's presence if “he liked the plaintiff's ‘big ass'” and “wants to fuck that big ass, ” to which Mr. Barnes responded, “Not everyone is into that.” (Proposed SAC, ¶ 57). “Instead of action being taken in response to . . . that episode, the plaintiff was isolated from other workers[] and told not to speak to anyone or she would be written up by management.” (Proposed SAC, ¶ 57). That same year, four different supervisors -- Tom McEnery, Thomas Nolan, Eric Galloza, and Cory Jaworsky --told the plaintiff that “they rated male mechanics higher than female mechanics, ” calling male mechanics “top of the barrel” and female mechanics “bottom of the barrel.” (Proposed SAC, ¶ 58).

         In 2014, the plaintiff alleges that she “was denied the opportunity to replace a supervisor who was leaving.” (Proposed SAC, ¶ 52). The supervisor, named Vormittagg, told her, “[Y]ou don't want this job, you have young kids and[] cannot help your family.” (Proposed SAC, ¶ 52). He then encouraged less qualified men to apply for the position. (Proposed SAC, ¶ 52). That same year, Mr. McEnery told other ConEd employees that the plaintiff “keeps getting pregnant so that she can get time off the job.” (Proposed SAC, ¶ 60). Meanwhile, a manager named Howie Sheard told the plaintiff that she was “put into isolation” because she was “a trouble maker” who “turns people into the EEO.” (Proposed SAC, ¶ 59). Mr. Sheard also stated, “I do not trust your ass . . . because I do not want you running to the EEO saying I tried to grab you.” (Proposed SAC, ¶ 59).

         In April 2015, the plaintiff was denied a request to be transferred to the Bronx -- the “most recent[]” of numerous requests to be transferred there, all of which “have been summarily and arbitrarily denied.” (Proposed SAC, ¶ 21). The plaintiff alleges that she has been making these requests regularly since 1993, when she was involuntarily transferred away from the Bronx for reporting sexual harassment by a supervisor named Nick Febrizio. (Proposed SAC, ¶¶ 20-21).

         The remainder of the plaintiff's allegations either concern conduct before June 7, 2013, or allege that certain types of conduct occurred throughout the duration of her employment without discussing specific incidents since June 7, 2013. For example, she alleges that “for more than 20 years, [she] has been subjected to retaliation, harassment and hostile work environment” for reporting the 1991 sexual assault (Proposed SAC, ¶ 16); that “[b]eginning in 1993 and continuing to the present time, ” numerous supervisors referred to black female mechanics as “going to the fields” while referring to white male mechanics as “going to the job” (Proposed SAC, ¶ 22); and that “[t]hroughout [her] employment, the standard practice at the company was to keep the medical conditions of male employees strictly confidential, while opening, revealing and discussing in public the medical conditions of female employees.” (Proposed SAC, ¶ 23).

         A. Exhaustion of Administrative Remedies

         As a prerequisite to bringing suit under Title VII, GINA, or the ADA, a plaintiff must first file a timely charge with the EEOC. See Chin v. Port Authority of New York & New Jersey, 685 F.3d 135, 146 (2d Cir. 2012) (Title VII); Yajaira Bezares C. v. Donna Karan Company Store LLC, Nos. 13 Civ. 8560, 13 Civ. 9123, 2014 WL 2134600, at *5 (S.D.N.Y. May 22, 2014) (GINA); Benjamin v. Brookhaven Science Associates, LLC, 387 F.Supp.2d 146, 154-55 (E.D.N.Y. 2005) (ADA). Accordingly, a plaintiff may only raise claims under these statutes if they were included in the EEOC charge or are “reasonably related” to it. Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). Because the defendant bears the burden of proving the plaintiff's failure to exhaust administrative remedies, Broich v. Incorporated Village of Southampton, 650 F.Supp.2d 234, 246 (E.D.N.Y. 2009), “a plaintiff is not required to explicitly plead or demonstrate exhaustion at the pleading stage, ” Arnold v. Research Foundation for the State University of New York, __ F.Supp.3d __,, 2016 WL 6126314, at *8 (E.D.N.Y. 2016).

         The EEOC charge in this case, which the defendant attached as an exhibit to its motion to dismiss, only alleges sex and national origin discrimination and retaliation under Title VII. (EEOC Charge). It does not allege discrimination under GINA, the ADA, or Title VII based on race, religion, or ethnicity. Accordingly, the defendant argues that those claims are barred by the plaintiff's failure to exhaust administrative remedies. (Def. Memo. at 9-10; Defendant's Memorandum of Law in Opposition to Plaintiff's Cross-Motion to Further Amend the Amended Complaint (“Def. Opp. Memo.”) at 7-8).

         The plaintiff counters that the Right to Sue Letter, which she attached as an exhibit to her opposition to the motion to dismiss and cross-motion for leave to amend, satisfies the exhaustion requirement because it states that it is “issued under Title VII, the ADA, or GINA.” (Right to Sue Letter, attached as Exh. A to Jasne Decl.; Pl. Memo. at 5-10). In the alternative, she argues that the claims not explicitly mentioned in the EEOC charge are reasonably related to those in the charge. (Pl. Memo. at 5-10).

         Although the plaintiff is not required to plead exhaustion, a court may in its discretion to convert a motion to dismiss into a motion for partial summary judgment on the issue of exhaustion of administrative remedies where both parties “submit[] and reference[] documents outside of the pleadings.” Clemmer v. Fordham Bedford Community Services, No. 14 Civ. 2343, 2015 WL 273657, at *3 n.1 (S.D.N.Y. Jan. 16, 2015). As both parties have submitted such documents and briefed the issue, I exercise my discretion to reach the issue here.

         First, the plaintiff's attempt to rely on what appears to be boilerplate language in the Right to Sue Letter is without merit. As stated above, whether a plaintiff properly exhausted administrative remedies depends on the claims contained in the EEOC charge, not the Right to Sue Letter. There is no dispute that the charge did not raise claims under GINA, the ADA, or Title VII based on race, religion, or ethnicity.

         Second, a claim is “reasonably related” to those in an EEOC charge when “the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made.” Littlejohn v. City of New York, 795 F.3d 297, 322 (2d Cir. 2015) (quoting Deravin, 335 F.3d at 200-01). This analysis focuses on “the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving.” Id. (alteration in original) (quoting Deravin, 335 F.3d at 201). Here, the EEOC charge does not describe the discriminatory conduct suffered by the plaintiff, such that it could have put the EEOC on notice to investigate claims of discrimination based on disability, genetic information, race, religion, or ethnicity. The mere assertion of claims based on sex and national origin is insufficient to give the EEOC notice to investigate claims based on different characteristics.[7] See Buksha v. New York City Dep't of Corrections, No. 06 Civ. 5363, 2007 WL 2947982, at *2 (S.D.N.Y. Oct. 9, 2007) (discrimination claims “based on different characteristics” and “different acts of alleged discrimination” are not “‘reasonably related' to the subject matter” in EEOC charges). Therefore, I recommend that dismissal be granted and leave to amend be denied with respect to the plaintiff's GINA, ADA, and Title VII race, religion, and ethnicity discrimination claims.

         B. Discrimination Claims

         1. Title VII, PDA, [8] and NYSHRL

         a. Statutes of Limitations

         To bring claims under Title VII, a plaintiff must file an EEOC charge within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e)(1); National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). The plaintiff filed her EEOC charge on April 3, 2014. Thus, her Title VII claims are barred to the extent that they are based on conduct that occurred prior to June 7, 2013, 300 days before she filed her EEOC charge.

         The statute of limitations under the NYSHRL is three years. CPLR § 214(2); Taylor v. City of New York, 207 F.Supp.3d 293, 302 (S.D.N.Y. 2016). The plaintiff's NYSHRL claims are therefore barred to the extent that they are based on conduct that occurred prior to June 23, 2013, three years before she filed her complaint.

         b. Merits

         Courts in this Circuit analyze employment discrimination claims under Title VII and the NYSHRL according to the same standard. McGill v. University of Rochester, 600 F. App'x 789, 790 (2d Cir. 2015); Taylor, 207 F.Supp.3d at 303. To survive a motion to dismiss a discrimination claim under either statute, a plaintiff must allege that she suffered an “adverse employment action” and “sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation.” Littlejohn, 795 F.3d at 311; see also Taylor, 207 F.Supp.3d at 304. “A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment” that “is more ...

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